Your Lordships, members of the Bar, I welcome you once more to the opening session of the Court of Appeal for 2017.
We have another heavy session before us, with fifty four appeals enrolled, of which only ten are criminal appeals, and many of the civil matters are complex with weighty records of proceedings. So I will not detain you long with these remarks. I express my gratitude to Justices Walia and Leburu whom the Chief Justice has kindly released to assist us during this session, so that where necessary three panels may sit simultaneously.
On behalf of all the Justices of Appeal, I would like to extend our condolences to the families of two of our former colleagues of the Court, who passed away in the course of 2016. They were Lord Coulsfield, who served from 2005 until 2009, and the Honourable Elijah Legwaila, who joined the Court in December 2011, and retired on account of his failing health in December 2015. Their services to Botswana, and to this Court are greatly appreciated.
During 2016, as in previous years, there has been some commentary in the press about “executive-mindedness” in the judiciary, and particularly in this Court, so I would like to say a few words about this and about my own view as to the role of the Court of Appeal. First, there is the separation of powers – much of the debate on this subject has arisen from comparisons with South Africa and the United States of America, whose constitutional dispensations are very different from our own. We may learn from them in some respects, but in others we prefer not to do so.
In Botswana there is no real separation between the executive and the legislature. The public service is led by the President and his Cabinet Ministers, who are all full members of Parliament. Together with the other members of the House they conceive and pass all the laws which we in the Judiciary implement and interpret in the performance of our mandate.
The true separation is between those two putative branches of Government, who are effectively one, and the judiciary which must remain independent and free of political influence, whichever party is in power. This is notwithstanding the fact that in Botswana, as in virtually every other country in the world it is the Legislature and the Executive – the powers that be – that in the final analysis legislate for the selection of Judges. And because of this they have the power to appoint most members of the bodies that make such recommendations or choices.
And it is because the tenure of Judges is constitutionally guaranteed, that their independence and fair-mindedness is so important. Although there may be changes of Government, in the political sense, the members of the Judiciary remain in post, pledged to respect, implement, and interpret the laws passed by the Government of the day, without fear or favour, and protecting the rights of every citizen accorded by the Constitution.
That is the essence of the Rule of Law. You may be aware that the Judicial Oath, by which all Judges are bound, enjoins us to honour and respect not only the Constitution, which is supreme, but also “the laws and usage of Botswana” and that is what we try to do.
So what, then, is an “executive-minded” Judge, and what is the role of the Court of Appeal in its adjudication of disputes and controversies between citizens, between (on occasion) Government and civil society, and between powerful corporations and less-resourced
The term “executive-minded” is often used by parties, unions, or interest groups, who have been unsuccessful in litigating a case against the Government, to describe the Judge who wrote their judgment. On the other hand, successful litigants tend to describe their Judge or Judges as “progressive”.
So the same Judge may, depending on the circumstances be described in either way, because every case is decided upon its own facts, and upon the same laws which apply to conservatives and progressives alike. That we must accept, but dramatic departures from the norm, or ground-breaking interpretations of the law will always be the exception rather than the rule and, on balance, any Government loses more cases than it wins. This is so because, in managing such a large workforce and such a wide portfolio of duties, as every Government must, there is abundant scope for the inevitable errors and miscalculations that do occur.
The Court of Appeal, as the highest court in the land, whose decisions bring final closure to litigants and often have a significant effect on their lives, has a grave responsibility to bear. It is expected to be a stabilising influence in society, and to make mature, measured, fair and usually predictable decisions, with which society can live for the future.
Major policy changes, as for example the abolition or retention of the death penalty, which is a punishment recognised by our Constitution, are usually better left to the elected representatives of the people to decide upon through the parliamentary process. Our responsibility, whatever our personal views may be, is to respect and interpret the laws passed by the Government of the day, and to ensure that these do not stray beyond the boundaries set by the Constitution. If they do exceed those boundaries we must, of course, intervene, as happens from time to time, and we must do so without fear or favour.
It is perhaps because of this need for stability and certainty that usually older and more seasoned individuals are appointed to the Court of Appeal bench. We have all been young and progressive Judges once, eager to leave our mark on the law reports with innovative and ground-breaking judgments, and to be remembered, in a sense, for having in one way or another made or changed some aspect of the law.
It is for the Court of Appeal to steady the ship, to ensure that our judgments reflect the general expectations of society, and to see to it that to the extent that the law, and the principles of constitutional interpretation may permissibly be developed by the Courts, this is done in a gradual and responsible way so as to minimise disruptions in public life.
These of course, are my personal views, but I believe that they are shared by the other members of the Court. We are all as you can see (and with due deference to Justice Leburu) more mature in age than most, so I hope you will be patient with us, and speak up when making your brief and concise submissions. It only remains to wish you all a happy and prosperous New Year, and to proceed to the calling of the Roll for what I hope will be both a stable and a progressive session. *This is an address by the Judge President Ian Kirby at the opening of the January 2017 Court of Appeal session
US House Speaker Nancy Pelosi’s visit to Taiwan has violated the One-China policy, and caused the escalation of tensions across the Taiwan Strait. Experts and political observers across the spectra agree that Pelosi’s actions and subsequent pronouncements by US President Joe Biden gave impetus to an already simmering tension in the Taiwan Strait, provoking China to strengthen its legitimate hold on the Taiwan Strait waters, which the US and Taiwan deem as ‘international waters’.
Pelosi’s visit to China’s Taiwan region has been heavily criticised across the globe, with China arguing that this is a serious violation of the one-China principle and the provisions of the three China-US Joint Communiqués. In response to this reckless move which seriously undermined China’s sovereignty, and interfered in China’s internal affairs, the expectation is for China to give a firm response. Pelosi visit violated the commitments made by the U.S. side, and seriously jeopardized peace and stability across the Taiwan Strait.
To give context to China’s position over Taiwan region, the history behind gives us perspective. It is also important to note that the history between China and Taiwan is well documented and the US has always recognized it.
The People’s Republic of China recognises Taiwan as its territory. It has always been the case even before the Nationalist Republic of China government fled to the previously Japanese-ruled Island after losing the civil war on the mainland in 1949. According to literature that threat was contained for decades — first with a military alliance between the US and the ROC on Taiwan, and after Washington switched diplomatic recognition to the PRC in 1979 by the US One China policy, which acknowledges Beijing’s position that Taiwan is part of One China. Effectively, Taiwan’s administration was transferred to the Republic of China from Japan after the Second World War in 1945, along with the split between the People’s Republic of China (PRC) and the Republic of China (ROC) as a consequence of the Chinese Civil War. Disregarding this history, as the US is attempting to do, will surely initiate some defence reaction on the side of China to affirm its sovereignty.
However, this history was undermined since Taiwan claimed to democratise in the 1990s and China has grown ever more belligerent. Furthermore, it is well documented that the Biden administration, following the Trump presidency, has made subtle changes in the way it deals with Taipei, such as loosening restrictions on US officials meeting Taiwanese officials – this should make China uneasy. And while the White House continues to say it does not support Taiwanese independence, Biden’s words and actions are parallel to this pledge because he has warned China that the US would intervene militarily if China attacked Taiwan – another statement that has provoked China.
Pelosi, in her private space, would know that her actions amount to provocation of China. This act of aggression by the USA seriously undermines the virtues of sovereignty and territorial integrity which has a huge potential to destabilize not only the Taiwan Strait but the whole of the Asia- Pacific region. The Americans know very well that their provocative behavior is deliberately invoking the spirit of separatism masqueraded as “Taiwan independence”. The US is misled to think that by supporting separatism of Taiwan from China that would give them an edge over China in a geopolitics. This is what one Chinese diplomat said this week: “The critical point is if every country put their One-China policy into practice with sincerity, with no compromise, is going to guarantee the peace and stability across the Taiwan Strait.” Therefore, it was in the wake of US House speaker Nancy Pelosi’s visit to Taiwan, that China, in a natural response revealed plans for unprecedented military exercises near the island, prompting fears of a crisis in the Taiwan Strait and the entire Asia-Pacific region. The world community must promote and foster peace, this may be achieved when international laws are respected. It may also happen when nations respect the sovereignty of another. China may be in a better space because it is well capacitated to stake its territorial integrity, what about a small nation, if this happens to it?
As to why military exercises by Beijing; it is an expected response because China was provoked by the actions of Pelosi. To fortify this position, Chinese President, Xi signed a legal basis for China’s People’s Liberation Army to “safeguard China’s national sovereignty, security and development interests”. The legal basis will also allow military missions around disaster relief, humanitarian aid and peacekeeping. In addition the legal changes would allow troops to “prevent spillover effects of regional instabilities from affecting China, secure vital transport routes for strategic materials like oil, or safeguard China’s overseas investments, projects and personnel. It then follows that President Xi’s administration cannot afford to look weak under a US provocation. President Xi must protector China’s sovereignty and territorial integrity, of which Taiwan is a central part.” Beijing is very clear on One-China Policy, and expects all world players to recognize and respect it.
The People’s Liberation Army has made it clear that it has firepower that covers all of Taiwan, and it can strike wherever it wants. This sentiments have been attributed to Zhang Junshe, a researcher at the PLA Navy Research Institute. Zheng further said, “We got really close to Taiwan. We encircled Taiwan. And we demonstrated that we can effectively stop intervention by foreign forces.” This is a strong reaction from China to warn the US against provocation and violation of the One-China Policy.
Beijing’s military exercises will certainly shake Taiwan’s confidence in the sources of its economic and political survival. The potential for an effective blockade threatens the air and shipping routes that support Taiwan’s central role in global technology supply chains. Should a humanitarian situation arise in Taiwan, the blame would squarely be on the US.
As China’s military exercises along the Taiwan Strait progress and grow, it remains that the decision by Nancy Pelosi to visit China’s Taiwan region gravely undermined peace and stability across the Taiwan Strait, and sent a wrong signal to “Taiwan independence” separatist forces. This then speaks to international conventions, as the UN Secretary-General António Guterres explicitly stressed that the UN remains committed to the UN General Assembly Resolution 2758. The centerpiece is the one-China principle, namely, there is but one China in the world, the government of the People’s Republic of China is the sole legal government representing the whole of China, and Taiwan is a part of China. It must be noted that the US and the US-led NATO countries have selectively applied international law, this has been going on unabated. There is a plethora of actions that have collapsed several states after they were attacked under the pretext of the so-called possession of weapons of mass destruction illuminating them as threats – and sometimes even without any valid reason. to blatantly launch military strikes and even unleash wars on sovereign countrie
British novelist, W. Somerset Maugham once opined: “If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.”
The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties — ruling and opposition.
As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.
We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.
Former President, Festus Mogae once stated that Botswana’s democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.
Although many may not publicly care to admit, Mogae’s assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values. This has been happening over the years now, and the situation is getting worse by the day.
Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in the Bulela Ditswe dispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.
Bulela Ditswe was an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.
Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.
We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties – ruling and opposition — have embraced this position and believe democracy is the hindrance to their political ambitions.
These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.
Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.
The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.
Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.
One of the biggest misconceptions around piracy is that an individual consumer’s piracy activities, especially in a market the size of Botswana’s, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.
When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they don’t imagine that their one download will do anything to the production house’s pocket or make a dent in the actors’ net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musician’s music or a short film produced locally.
The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.
The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that “illegally streamed copyrighted content consumes 24% of global bandwidth”.
As Botswana’s creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africa’s respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.
When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswana’s economy are being diverted.
“Why can’t our local creative industry grow?” “Why don’t we see more home-grown films and shows in Botswana?” are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswana’s local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.
Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.
This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the country’s economy.
So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, it’s imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economy’s growth.
Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artist’s music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana